C-90/97

SWADDLING y ADJUDICATION OFFICER

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 29 September 1998 *

1. The Social Security Commissioner seeks a Facts and the relevant national legislation preliminary ruling on the interpretation of Article 48 of the Treaty and, accordingly, on the basic principle of freedom of movement for workers, in relation to national legislation which makes entitlement to a special benefit in the form of income support contingent on the claimant's habitual residence in the United Kingdom, which, to be acquired, presupposes an appreciable period of residence in the ter­ 2. Robin Swaddling, a British national, exer­ ritory of that State. cising the right to freedom of movement under the Treaty, worked in France from 1980 3 until 1988. During that time, however, he continued to pay United Kingdom national insurance contributions. His work, on behalf of and in the employment of the French tourist service, involved escorting tourists to France, at first almost daily, and then weekly. Eventually he lived in France on a regular basis, returning to the United Kingdom only when necessary for reasons of work.

In one case, a training course was envisaged Those Regulations define 'person from abroad' at two radio stations in the United Kingdom. as a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man. They further provide that no claimant is to be treated as not habitually resident in the United Kingdom who is a worker for the purposes of the Community legislation on freedom of movement for workers or who has a right to reside in the United Kingdom pursuant to Council Directives 68/360/EEC or At the end of 1994 Mr Swaddling again lost 73/148/EEC. Nor may a person be treated as his job because his employer went out of not habitually resident who is a refugee as business. After a brief attempt to find another defined by the relevant international legisla­ job in France, he returned in January 1995 to tion or who has been granted exceptional the United Kingdom and went to live with leave to remain in the United Kingdom by his brother. On 9 January 1995 he applied for the Secretary of State. income support under section 124 of the Social Security Contributions and Benefits Act 1992.

The United Kingdom rules on income support

weeks and could therefore be regarded as question to the Court of Justice for a prelimi­ 'habitually resident' in the United Kingdom nary ruling: only as from 4 March 1995. With regard to the period between 9 January and 3 March 1995 it was found that, although Mr Swad­ dling had shown the requisite intention of making the United Kingdom his country of residence, he could not be regarded as 'habitu­ ally resident' for the purposes of being granted income relief. 'In circumstances where a person has worked and been habitually resident in one Member State, has then exercised the right to freedom of movement for workers to move to another Member State, where the person has worked and become habitually resident, and finally returns to the first Member State in order to seek work, is it compatible with the require­ ments of Article 48 of the Treaty of Rome for the first Member State to impose a condition of habitual residence in that State (involving the existence of an appreciable period of resi­ dence in that State) on entitlement to a gen­ 5. On the basis of those legal considerations, eral non-contributory means-tested State ben­ the Adjudication Officer refused Mr Swad- efit with the characteristics of British income dling's application for income relief. His appeal support?' against that decision was upheld by the Appeal Tribunal, which found that he was habitually resident in the United Kingdom, purely on the basis of his intentions.

Relevance of Regulation No 1408/71

6. In contrast with the position adopted by the national court in the order for reference, The Adjudication Officer appealed against the I believe that income support as provided for Tribunal's decision to the Social Security Com­ by the United Kingdom legislation falls within missioner. The latter decided that the argu­ the scope of Regulation No 1408/71. Accord­ ments put forward on the basis of Regulation ingly, the question whether the national leg­ No 1408/71 were irrelevant on the ground islation concerned is compatible with Com­ that income relief was not sufficiently linked munity law must be examined in the light of to any of the risks referred to in Article 4(1) the interpretation of the relevant provisions of that Regulation, and referred the following of that regulation.

9. Let me say at once that I do not share that view, especially given the regulation's extended scope in consequence of the amendments introduced by Regulation No 1247/92. Article 4(1) of the version of Regulation No 1408/71 previously in force listed certain social secu­ rity benefits, thus delimiting the matters cov­ 6 ered by the regulation. The principle con­ cerning the waiver of residence clauses applied only to those benefits expressly listed, which meant that a person claiming entitlement to those benefits retained it even if he resided in a Member State other than the State of the Mr Swaddling is affiliated to the United competent institution. Kingdom National Insurance Scheme to which, moreover, he used to pay contribu­ tions. Equally, it could be argued that his affiliation to the French social security scheme during his stay in France gives him a further ground for claiming to be one of the persons covered by the regulation. Although the Court has never questioned the fact that social and medical assistance fall out­ side the scope of the regulation by virtue of Article 4(4) thereof, it has conceded that ben­ 4 — See, prior to Regulation No 1408/71, the case-law of the efits may be provided for under the various Court of Justice concerning the interpretation of the regula- tion previously in force, Regulation No 3 of the Council (EEC) on social security for migrant workers: Case 75/63 Hoekstra [1964] ECR 177. Obviously, given the growth in legislation, the approach taken in the case-law was amply confirmed in judgments given after the entry into force of the 5 — See, in particular, paragraph 28 of the order for reference. regulation: see Case 39/76 Mouthaan [1976] ECR 1901 and 6 — The benefits in question arc sickness and maternity benefits, Case 182/78 Pierik [1979] ECR 1977. See also the Opinion invalidity benefits, old-age benefits, survivor benefits, benefits of Advocate General Léger in Case C-20/96 Snares [1997] in respect of accidents at work and occupational diseases, ECR I-6057, especially paragraphs 30 and 31. death grants, unemployment benefits and family benefits.

Article 10a of Regulation No 1408/71, which was also inserted by Regulation No 1247/92, lays down special rules for such of the special non-contributory benefits generally contem­ plated in Article 4(2a) as are specifically listed in Annex IIa to the regulation: claimants receive these 'exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State', that is to say, subject to a residence require­ 10. As I have already mentioned, the amend­ ment. It follows that, in the case of the special ment introduced by Regulation No 1247/92 non-contributory benefits referred to in reflected the need to take into account the Article 4(2a) of the regulation but not listed case-law referred to above on benefits which in the Annex thereto, the principle set out in display the characteristic features of both Article 10(1) applies; in other words, in such social security and social assistance, thereby cases, the residence clause must be waived. extending the scope of Regulation No 1408/71, which had previously made no express provi­ sion for such cases. 9 Thus, Article 4(2a), which was inserted by Regulation No 1247/92, provides that 'this regulation shall also apply to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or 11. Income support is expressly mentioned excluded by virtue of paragraph 4, where such in Annex IIa, in subparagraph (e) of the benefits are intended: (a) either to provide United Kingdom section. So far as concerns the significance of that fact, I share the view expressed by Advocate General Léger in 7 — See Case C-356/89 Newton [1991] ECR I-3017, particularly Snares, to the effect that 'the specification of paragraph 12. For references to other previous decisions, see the Opinion of Advocate General Léger in Snares, cited above, a benefit ... in Annex IIa asbeing a special footnote 4; in academic writings, the development of the non-contributory benefit to which Article 10a case-law is traced in Van Raepenbusch, Le sécurité sociale des personnes qui circulent à l'intérieur de la Communauté applies is ... sufficient to bring it unambigu­ économique européenne, Brussels, 1991, p. 258 et seq. 1 ously within the scope of Article 4(2a)'. 0 To 8 — See Case 249/83 Hoeckx [1985] ECR 973, particularly para- graph 12. 9 — See again the Opinion of Advocate General Léger in Snares, cited above, footnote 4, which refers to the third and fourth recitals in the preamble to Regulation No 1247/92. See also the judgment in that case, particularly paragraph 33. 10 — See the Opinion cited above, footnote 4, paragraph 56.

13. Since income support may be counted as one of the special non-contributory benefits referred to in Article 10a of the regulation, it must be determined whether Mr Swaddling met the requirements laid down in the rel­ evant provision which refers, moreover, to those laid down in the legislation of the Member State of residence. According to the order for reference, Mr Swaddling meets all the requirements set by United Kingdom leg­ 11 — Sec Snares, cited above, footnote 4, paragraph 30, which islation except for that concerning 'habitual refers to the previous judgment in Case 24/64 Dingemans [1964] ECR 647. residence' which, as already indicated, requires 12 — See the recent judgment in Joined Cases C-88/95, C-102/95 not only the settled purpose of establishing and C-103/95 Martmez Losada and Others [1997] ECR I-869, paragraph 21. residence in the territory of the United

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13 — The justification for the residence requirement lies in the special nature of the benefit which, being closely linked to In particular, it has indicated that the factors the social environment in which the claimant lives on a settled basis, may be relied upon only in the country of resi- to be taken into consideration when seeking dence: see Snares, cited above, footnote 4, paragraph 42. to identify the residence of a worker who 14 — See, most recently, Snares, cited above, footnote 4, paragraph 46. moves from one Member State to another are

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OPINION OF MR SAGGIO — CASE C-90/97

15 it appears from all the circumstances. In a of the Communities, are obliged to move 16 later judgment given in 1992, again on the from their country of residence to the country question of Article 71, the Court reiterated where they are posted. Since the purpose of that, for the purposes of identifying the State that allowance is to alleviate the expense and of residence, it is necessary to determine the inconvenience entailed in integrating into a principal centre of the worker's interests, new environment, the (habitual) residence of having regard not only to his family situa the person concerned prior to entry into ser tion, but also to the reasons which led him to vice, that is to say, the place where he had move and the nature of the work. In that established the permanent centre of his inter case, the Court found it irrelevant that the ests, is one of the primary criteria governing

1 Member State from another, 8serves to deter mine whether a vehicle has been temporarily imported — is the place where the person concerned established the permanent centre of his interests and is to be identified in the light of all the relevant factual circumstances of the particular case. In Ryborg the Court 15 — See Case 76/76 Di Paolo [1977] ECR 315. Advocate General Capotorti also accorded particular importance to the subjec- ruled that the fact that, for more than a year, tive factors in his Opinion in the case just cited, after com- paring the various national legislative arrangements, including the person in question spent every night and the United Kingdom's social security scheme. In a previous every weekend in a State other than that of case, the Court used subjective factors — the person's inten- tions and choice of a principal centre of interests — as the residence was not sufficient for it to be con criteria on which it based its finding that a business repre- sentative who spent nine months each year touring Ger- cluded that he had transferred the permanent many in a caravan visiting clients and had at his disposal a post box and business address was resident in France for the centre of his interests to that State.

. ., he does not have a perma- nent residence anywhere else, even though the length of time 17 — See Case 284/87 Schäflein [1988] ECR 4475 and Case spent away continuously on the move happens to be greater than the time spent in the place which is the centre of his C-452/93 P Magdalena Fernández [1994] ECR I-4295. For existence . . .'. the case-law of the Court of First Instance, see Case T-63/91 Benzler [1992] ECR II-2095, paragraph 25, and Case T-90/92 16 — See Case C-102/91 Knoch [1992] ECR I-4341, particularly Magdalena Fernández [1993] ECR II-971, paragraph 27. paragraphs 21 to 29. 18 — OJ 1983 L 105, p. 59.

18. Those examples may come from different areas of law, but they show that the refer­ ences to residence in the various Community rules cited above share the same conceptual basis, namely the idea that the country of residence is that to which the person con­ cerned has formed a 'social attachment' which is stronger and more stable than any links he According to the order for reference, the may have with other Member States. It is a competent United Kingdom authority deter­ connection of that nature which justifies, in mined that Mr Swaddling had no longer the present case, payment of the special non- worked in France; nor had he a residence contributory benefits referred to in Article there or relatives or even close friendships 10a of the regulation, or, given the fulfilment with persons resident there. On the other of certain other conditions, confers entitle­ hand, he appears to live in the United Kingdom ment to unemployment benefits on the basis with his brother and, even though he was of Article 71, just as, in a different context, it unemployed at the material time, sought work gives a person who enters the service of the which would allow him to use his knowledge Communities a right to the expatriation allow­ of languages, but would not compel him to ance. leave the country save for occasional trips. Those factors, verification of which is in any event a matter for the national court, are to my mind sufficient to support the conclusion that the United Kingdom is the permanent centre of Mr Swaddling's interests and has been ever since his return there. Moreover, it 19. It follows that in Community law, and should be borne in mind that Mr Swaddling particularly in the field of social security, the is a British national and, all other things being concept of residence — in the sense of habitual equal, certain effects must follow from the abode — must be taken to mean the place fact that, usually, citizens who return to their where the person concerned has established own country after definitively ceasing work

22. In the light of the case-law of the Court of Justice, the unfavourable treatment accorded to a worker who returns to his own country may in the end nullify a social secu­ rity advantage provided for by legislation which, like that at issue in Masgio, 'is liable, 21. The United Kingdom rules governing even though it applies without regard to the habitual residence, which are at issue in these nationality of the workers concerned, to place proceedings and which require migrant migrant workers in a worse position as regards workers who return to their own State to social security than those who have worked 23 have accomplished an appreciable period of in only one Member State'. residence in the territory of the United Kingdom in order to be entitled to the ben­

22 — This is essentially discrimination in the form of an 'exit pen- alty', which the Court held to be unacceptable in Case C-370/90 Singh [1992] ECR I-4265, paragraph 19. 21 — See, for example, Case C-293/88 Winter-Lutzins [1990] ECR 23 — Masgio, cited above, footnote 21, paragraph 19. The prin- I-1623, paragraph 13, and Case C-10/90 Masgio [1991] ECR ciple was confirmed, albeit in relation to other circumstances, I-1119, paragraph 16. in Case C-165/91 Van Munster [1994] ECR I-4661.

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24 — See, to that effect, Joined Cases 41/79, 121/79 and 796/79 Testa and Others [1980] ECR 1979, paragraph 14, and, more 25 — See Case C-62/91 Gray [1992] ECR I-2737, a judgment generally and not merely with reference to national social which was anticipated, however, in Case C-272/90 Van security legislation, Case C-292/89 Antonissen [1991] ECR Noorden [1991] ECR I-2543. 1-745, paragraph 21. 26 — See Gray, cited above, footnote 25, paragraph 12.

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OPINION OF MR SAGGIO — CASE C-90/97

tion, is conditional on residence because of 1408/71 is defined in terms of a wider con­ the close connection between recognition of cept of 'worker', which coincides with the entitlement to that benefit (and its size) and field of application of the social security the claimant's social environment. However, system of one of the Member States. Further­ that cannot in any circumstances justify more, given the fact that the two sources of according a migrant worse treatment where law differ in scope, there is no reason, whether he has settled in the territory of the State and, based on the wording or on logic, why Article accordingly, as Article 10a requires, is resi­ 10a of Regulation No 1408/71 should be dent there. Mr Swaddling's case must be interpreted in the same way as Article 7 of decided in the light of that principle. Regulation No 1612/68.

27 — See Case 316/85 Lebon [1987] ECR 2811, paragraphs 25 to 29 — A principle which has been reaffirmed by the Court on 27. numerous occasions: see Case 43/86 De Rijke and Another 28 — See Case 66/85 Lawrie-Blum [1986] ECR 2121, Case 344/87 [1987] ECR 3611, paragraph 12, and Case 368/87 Hartmann Bettray [1989] ECR 1621 and Case C-3/90 Bernini [1992] Troiani [1989] ECR 1333, paragraph 21. ECR I-1071. 30 — See Case 284/84 Spruyt [1986] ECR 685, paragraph 19.

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munity concept, that concept must be inter­ pursues precisely by means of that concept, preted and applied in the national legal sys­ and thus without denying migrant workers a tems in the light of the fundamental objec­ right which they would have been accorded tives referred to above, without impairing under national legislation if they had not coordination, an aim which the provision exercised their right to freedom of movement.

26. On the basis of the foregoing considerations, I therefore propose that the Court reply as follows to the question referred by the Social Security Commissioner: